Lawrence Golan, a professor at the Lamont School of Music, found himself at the conclusion of a 10-year legal process when the hearing for Golan v. Holder was held last Wednesday in front of an eight-member Supreme Court.
Justice Elena Kagan has recused herself from the case because of her previous role as United States Solicitor General, which means a tie vote from the remaining justices would uphold the 10th Circuit decision that ruled in favor of Congress’ decision to give copyright protection to millions of international works that were once part of public domain.
The court will issue the decision on the case in the next two to six months, according to Golan.
“It’s impossible to see what happens next, and when it will happen,” said Golan from his Washington D.C. hotel room hours after the trial. “The hearing was this morning, and I think it went well. Our attorney, Anthony Falzone, was 100 percent prepared for every question the justices threw at him.”
The outcome of the case will have a significant global and cultural impact as the Justices must decide whether Congress has the power to grant copyright protection that directly removes work from the public domain, according to Derigan Silver, an associate professor of Media, Film and Journalism Studies.
“If the circuit court’s decision is overturned it basically means that these works will not have copyright protection in the United States; however, they may have copyright protection in their home country, or the country where the work was originally produced in,” said Silver. “Because there is no international copyright law per se, what really could become the issue [if the ruling is overturned]is an arms race between countries. The United States would have to increase its copyright protections and another country will then decide to increase theirs in order to be in line with ours, and it can go back and forth.”
While an overturn may produce international backlash, the arguments made to the Justices were based strictly on Congress’ authority and power in granting copyright protection to works under the copyright clause of the U.S. Constitution.
According to Silver, this case is similar to a 2002 decision, Eldred v. Ashcroft, where the Supreme Court ruled that Congress was able to extend the period of copyright for 20 years beyond the grant period; however, in that ruling, the works in question were within their protected period, so the extension did not have the effect of removing the works out of the public domain.
“Golan’s side is essentially making the same argument that was made in Eldred v. Ashcroft, which is that we’ve changed copyright laws so much that it now is in direct conflict with the copyright clause in the Constitution that grants Congress this power,” said Silver. “Their argument is that Congress has exceeded its authority; however, it isn’t the first time that Congress has restored copyright protection to work previously in the public domain, so the government is arguing that if it’s happened in the past, then this isn’t a problem.”
In Washington D.C. last week, Golan did not give a testimony and said he didn’t have to be in the city for the hearing, but he wanted to see the process conclude at the federal level.
Falzone, a Stanford University law professor, argued for the users of the works that had been in the public domain but are no longer.
Donald B. Verrilli Jr., the U.S. Solicitor General, represented the United States, making his first argument before the court in that position.
Golan’s interest in the case coincides with multiple academic colleagues, which include fellow conductors, film historians, authors and play directors.
When he originally agreed to be the lead plaintiff for the case in 2001, Golan said he had no idea that the case would still be going a decade later.
“I don’t exactly remember how I became the lead plaintiff, but I remember being asked by another conductor, and I agreed,” said Golan. “Little did I know what I was about to get into.”
The group fighting to overturn Congress’ decision started their movement 10 years ago in hopes to halt what they believe is an egregious mistake that will hinder not only the future of academics, but also the fate of professional fine arts performances in this country.
“For a music teacher like professor Golan, who is an educator and a performer, it’s a double blow,” said Silver. “Not only is he being put in a situation where he can’t use this music to teach his students, his students can’t perform this music for the public.”
“It’s hard for me because from my standpoint, I am more focused on the educational component. What can libraries make available? What can we show in classroom? It’s very important [for the future of academics],” said Silver.
Certain works that are being questioned in the case include films by Alfred Hitchcock, paintings by Picasso and the symphonies of great 20th-century Russian composers, according to the Washington Post.
When Congress issued copyright protection to these works, they did so with the belief that applying copyright was the necessary action needed to comply with foreign treaties as well as trade agreements.
As for Golan and his colleagues, the copyright ruling from Congress has limited them for what they can afford to produce for the public entertainment as well as teach to their students.
“In my particular area of orchestral production, there are pieces just going not played at all; and when they are being performed, it’s only super-famous pieces getting played by very wealthy orchestral productions,” said Golan. “A vast majority of works that we used in the past are not being performed because they are more expensive then they were before.”
Prior to 1994, Golan said that pieces could be available for $100 and, once purchased, could be performed without limitations.
In the modern world, Golan said most rental prices range from $500-$1500 on a per-performance agreement.
“Some schools and production companies can make it happen, but most can’t afford it due to budget constraints,” said Golan. “It effects pretty much all areas from universities to high schools to junior high schools to community orchestras. If this ruling is not overturned, they won’t be able to afford those pieces for quite some time.”
Golan estimated that it could be anywhere from 20 to 60 years before most works can be used for educational purposes.
“I’d say 20 to 60 years is an accurate estimate, because a lot of these works are older works,” said Silver. “Right now, under the Copyright Term Extension Act, how long a work receives protection is byzantine. It’s just really complex, depending on whether the work is from an author, or it’s from a work-for-hire; when it was created, or when it was introduced into the public. Every single work will have a different determination when they can re-enter the public domain.”
Golan pointed out that many pieces given copyright protection under the congressional decision are works that at the time of production were only given 28 years of copyright under old law; however, in some cases, people forgot to renew copyright or selected that their work enter the public domain.
“This process has given me a better understanding of current copyright law and how it is constantly changing,” said Golan. “In our case, we are discussing millions of works by thousands of people and many of those creators wouldn’t want their works to be restricted. But under this new law, millions of pieces are out of the public domain.”
Golan said he will not need to return to Washington for the Supreme Court’s decision.